JUDGMENT
S.R. Bannurmath, J.
1. Though the matter was posted for admission, with the consent of learned Counsel on both sides, the same was taken for final disposal.
2. The management, aggrieved by the order of the learned Single Judge dated 20th August, 2007 in W.P. No. 53400 of 2003 and the award dated 30.12.2002 passed by the Labour Court, Mangalore has approached this Court in the present appeal.
3. The case of the appellant is that in the year 1995 it-had issued paper advertisement for various posts including the post of Senior Maintenance Technicians and the qualification for the said post was prescribed as minimum S.S.L.C. and Diploma in Mechanical Engineering and three to live years of experience. It is the case of the management that the respondent applied to the post and in his bio data furnished along with his application he has mentioned his qualification as SSLC passed with I.T.I. certificate. Accepting the statement, the respondent was called for interview and as he was not holding the diploma but S.S.L.C. with special training in I.T.I. as per his say, was appointed as Assistant Technician in the year 1992. Thereafter in the year 1999, on perusal of the record and enquiry it was noticed that in respect of S.S.L.C. qualification, the workman has not produced marks card and as such he was directed to submit the same. At that time in reply to this query, the workman admitted that he had not passed S.S.L.C. but has studied upto 9th standard and in this regard transfer certificate has produced. The workman also along with his reply has produced a copy of the application submitted to the Education Board for having applied for a duplicate copy of his S.S.L.C. failed mark sheet/card. Even it was noticed that the date of birth mentioned as 21.03.1966 had been struck off and written as 22.01.1995. Noticing all these frauds committed by the workman, charge sheet came to be issued. The respondent’s reply being not satisfied, disciplinary enquiry was initiated and alter giving sufficient opportunity, the Enquiry Officer submitted his report and a finding was given, holding that the respondent is guilty of the charge and accordingly he was dismissed from service.
4. Aggrieved by the same, the workman raised a dispute before the Labour Court. The Labour Court after conducting a detailed enquiry by the award dated 30th December 2002 directed the management to reinstate the workman in to service with continuity of service and payment of back wages to an extent of 50%. Aggrieved by the said award, the management approached this Court in the writ petition. The learned Single Judge even after noticing the well settled law in respect of obtaining employment by furnishing false information suppressing the educational qualification etc., as held in Kerala Solvent Extracts limited v. A. Unnidkrishnan and Ors. reported in 1994 II LLJ 888 adverting to the present case showing misplaced sympathy and generosity held that as the workman though applied for the post of Senior Maintenance Technician since he was given Assistant Technician post he is not only entitled for the back wages but the order of reinstatement requires continuation. Incidentally it is to be noted that the learned Singled Judge though noticed the observations and the guidelines issued by the Apex Court in the case sited supra ignored the same and has placed misplaced sympathy and ordered for reinstatement.
5. Learned Counsel for the workman vehemently contended that as the mistake was of the employer in hurriedly calling for the application and appointment without verifying the record and as the workman himself in the year 1999 informed the employer that he is not qualified, since the management, itself gave lower post than advertised to the appellant, the findings of the Labour Court and the learned Single Judge need no interference.
6. Learned Counsel has in this regard relied upon the pronouncement of the Division Bench of this Court in the case of Gopalaiah v. Chairman and Managing Director, State Bank of Mysore, Kempegowda Road, Bangalore and Anr. reported in 1999(4) KCCR SN 366 (DB) to contend that one of the main ingredients of fraud within the meaning of Section 17 of the Contract Act is that the alleged false representation should have been made with the intent to deceive or induce the other party to pass orders favourably to the person making representation. Failure to disclose or suppression of facts which has no bearing on the event cannot be held to be deception or fraud.
7. It is to be noted that even the said judgment has no use to the workman’s case since the false representation has been only with an intent to overcome the requirement of the qualification prescribed by the management for the job. The conduct ‘fraud’ has been well explained by the Apex Court in the case of Bhaurao Dagdu Paralkar v. State of Maharashtra (2005) 7 JT (SC) 530 has observed thus:
14…Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.
8. This aspect has been further considered by the Apex Court in number of cases and Gowrishankar Family Trust it has held that suppression of material documents would also amounts to fraud. The conduct of ‘fraud’ has defined by the Apex Court as under:
“Fraud” is a conduct either by letter or words, which induces the other person or authority to lake a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud.
9. Added to this as it is to be noted from the records the workman had not even completed his 9th standard education as is evident from his own transfer certificate. There is also a clear attempt to correct the date of birth in the record. All these attempts are nothing but a fraudulent act of the workman to get employment one way or the other.
10. Hence in our view, the order passed by the Labour Court and the modified order of the learned Single Judge are contrary to law and hence are required to be interfered with.
11. In the result, the appeal is allowed. The impugned older dated 20.08.2007 passed by the learned Single Judge in W.P.No. 53400/2003 and the award dated 30.12.2002 in IDA No. 62/2000 passed by the Labour Court are hereby set aside and the action taken by the appellant is confirmed.